Smith v. NH BLLS ( 1995 )

USCA1 Opinion

        November 28, 1995       [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT





                                 ____________________





        No. 95-1520



                         ROBERT F. SMITH AND JOANNE M. SMITH,



                               Plaintiffs, Appellants,



                                          v.



             NEW HAMPSHIRE BOARD OF LICENSURE FOR LAND SURVEYORS, ET AL.,



                                Defendants, Appellees.





                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF NEW HAMPSHIRE





                    [Hon. Paul J. Barbadoro, U.S. District Judge]
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                                 ____________________



                                        Before



                                Cyr, Boudin and Lynch,

                                   Circuit Judges.
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                                 ____________________



            Robert F. Smith and Joanne M. Smith on brief pro se.
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            Jeffrey R. Howard, Attorney General,  and Stephen J. Judge, Senior
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        Assistant Attorney General, on brief for appellees New Hampshire Board

        of Land Surveyors and Members.

            Donald F. Whittum and Cooper, Hall,  Whittum & Shillaber, P.C.  on
_________________     ________________________________________

        brief for appellee David Richard Noyes.





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                      Per Curiam.  Plaintiffs-appellants filed an amended
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            complaint under 42  U.S.C.   1983 alleging violations  of the



            First Amendment,  due process and  equal protection  clauses,



            all  based on  the  refusal of  the  New Hampshire  Board  of



            Licensure   to   hold   a  formal   hearing   on  plaintiffs'



            disciplinary charges  against defendant Noyes.   The district



            court  dismissed  the  complaint   for  failure  to  state  a



            cognizable claim.



                      Plaintiffs challenge  the court's ruling  that they



            did not plead the deprivation of an interest protected by the



            due  process clause.   They  say  that the  court erroneously



            failed  to recognize  a  constitutional  deprivation  in  the



            alleged violation of their  state law rights to notice  and a



            hearing on their disciplinary  complaint against Noyes.  Even



            if  a protected  interest  could be  identified, however,  an



            unauthorized deviation from state  procedure does not rise to



            the level  of a  constitutional due process  violation unless



            the  state  fails  to  provide  a  suitable  post-deprivation



            remedy.   See Licari v. Ferruzzi, 22  F.3d 344, 348 (1st Cir.
___ ______    ________



            1994).   New  Hampshire law  provides  such a  remedy through



            rehearing and  direct appeal of  Board orders, see  N.H. Rev.
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            Stat. Ann.   310-A:71  (1995) ("Orders of the board  shall be



            subject to rehearing  and appeal in the  manner prescribed by



            RSA 541."); N.H. Rev. Stat. Ann.    541:1-541:6 (1974 & Supp.



            1994),  or petition for an extraordinary writ.  See N.H. Rev.
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            Stat. Ann.   490:4 (1983).  Plaintiffs' remaining contentions



            also  fail  substantially  for  the  reasons  stated  by  the



            district court.



                      Reviewing  the district  court's decision  de novo,
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            the judgment is affirmed.
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